Category Archives: Mark L. Movsesian

Call for Papers: Law, Religion and Bioethics

The journal, Quaderni di Diritto e Politica Ecclesiastica, is soliciting papers for a 2015 issue on the topic, “Law, Religion and Bioethics.” Submissions should address novel research in the following fields:

  • Human Dignity and Bioethics in the case law of the European Court of Human Rights
  • Conscientious Objection and Bioethics
  • Open and emerging issues in bioethics and law in Israel, Russia, Egypt, India

The deadline for submission is October 11, 2014. For details, please contact redazioneqdpe1@libero.it.

The Return of the Dhimma?

First Things has run my essay on the return of the dhimma in Syria and its potential meaning for Mideast Christians:

Recently, an Islamist group in the Syrian opposition, the Islamic State in Iraq and the Levant (ISIL), captured the town of Raqqa and imposed on its Christian inhabitants the dhimma, the notional contract that governs relations with Christians in classical Islamic law. The dhimma allows Christian communities to reside in Muslim society in exchange for payment of a poll tax called the jizya and submission to social and legal restrictions. In Raqqa, for example, Christians have “agreed,” among other things, to pay ISIL a tax of $500 per person twice a year—poorer Christians can pay less—and to forgo public religious displays.

The dhimma has not been in operation in the Mideast for about 150 years. Even Egypt’s Muslim Brotherhood did not reinstate it during the party’s brief period in power. Indeed, some progressive Islamic scholars argue that the dhimma is an anachronism that should no longer be part of Islamic law. So ISIL’s decision to impose it now has shocked Christians and many Muslims. The formal reestablishment of the dhimma in Raqqa reveals that some Islamists are prepared to cross a line many had thought inviolable.

You can read the whole thing here.

Happy 450th Birthday to William Shakespeare

250px-Shakespeare

Measure for Measure (Act II, Scene 2):

ANGELO.
Your brother is a forfeit of the law,
And you but waste your words.
ISABELLA.
Alas, alas!
Why, all the souls that were were forfeit once,
And He that might the vantage best have took
Found out the remedy. How would you be
If He, which is the top of judgment, should
But judge you as you are? O, think on that,
And mercy then will breathe within your lips,
Like man new made.
ANGELO.
Be you content, fair maid,
It is the law, not I, condemn your brother.
Were he my kinsman, brother, or my son,
It should be thus with him: he must die tomorrow.
ISABELLA.
Tomorrow? O, that’s sudden! Spare him, spare him!
He’s not prepar’d for death. Even for our kitchens
We kill the fowl of season. Shall we serve heaven
With less respect than we do minister
To our gross selves? Good, good my lord, bethink you:
Who is it that hath died for this offense?
There’s many have committed it.
LUCIO.
Aside to Isabella: Ay, well said.
ANGELO.
The law hath not been dead, though it hath slept.
Those many had not dar’d to do that evil
If the first that did th’ edict infringe
Had answer’d for his deed. Now ’tis awake,
Takes note of what is done, and like a prophet
Looks in a glass that shows what future evils,
Either now, or by remissness new conceiv’d
And so in progress to be hatch’d and born,
Are now to have no successive degrees,
But here they live, to end.
ISABELLA.
Yet show some pity.
ANGELO.
I show it most of all when I show justice;
For then I pity those I do not know,
Which a dismiss’d offense would after gall,
And do him right that, answering one foul wrong,
Lives not to act another. Be satisfied;
Your brother dies tomorrow; be content.
ISABELLA.
So you must be the first that gives this sentence,
And he, that suffers. O, it is excellent
To have a giant’s strength; but it is tyrannous
To use it like a giant.
LUCIO.

 Aside to Isabella: That’s well said.

ISABELLA.
Could great men thunder
As Jove himself does, Jove would never be quiet,
For every pelting, petty officer
Would use his heaven for thunder,
Nothing but thunder! Merciful heaven,
Thou rather with thy sharp and sulphurous bolt
Splits the unwedgeable and gnarled oak
Than the soft myrtle; but man, proud man,
Dress’d in a little brief authority,
Most ignorant of what he’s most assur’d
(His glassy essence), like an angry ape
Plays such fantastic tricks before high heaven
As makes the angels weep; who, with our spleens,
Would all themselves laugh mortal.

Why Protect Religion?

Tocqueville understood

A growing number of legal scholars question whether a justification exists for protecting religion as its own category. Yes, the text of the First Amendment refers specifically to religion, they concede, but that’s an anachronism. As a matter of principle, religion as such doesn’t merit legal protection. Instead, the law should protect individual conscience, or private associations generally. In fact, it’s not just scholars. In the ministerial exception case a couple of years ago, the Obama Administration argued that the Religion Clauses did not even apply and that the Court should decide the case under more general associational freedom principles.

The Justices unanimously dismissed the Obama Administration’s argument in Hosanna-Tabor, and there seems little chance the Roberts Court will read the Religion Clauses out of the Constitution. But history shows that constitutional text is not an insurmountable barrier, and those of us who think religion as such does merit special protection will need to find arguments beyond the bare language of the First Amendment. In fact, in an increasingly non-religious society, we’ll have to find arguments that appeal to people without traditional religious commitments.

Here’s one such argument. Religion, especially communal religion, provides important benefits for everyone in the liberal state–even the non-religious. Religion encourages people to associate with and feel responsible for others, to engage with them in common endeavors. Religion promotes altruism and neighborliness and mitigates social isolation. Religion counteracts the tendencies to apathy and self-centeredness that liberalism seems inevitably to create.

Tocqueville saw this in the 19th century. Egalitarian democracy, he wrote, encourages a kind of “individualism.” It trains each citizen to look out for himself according to his own best judgment and discount the needs of the wider society. Self-reliance is a good thing; at least Americans have long though so. But the attitude poses two great dangers for liberal society. First, it makes it difficult to motivate people to contribute to the common projects on which society depends: public safety, schools, hospitals, and the like. Second, it makes it easier for despotism to arise. The despotic state desires nothing more than for individual citizens to feel isolated from and indifferent to the concerns of others, so that the state can easily divide and dominate them all.

Tocqueville saw that voluntary associations could lessen these dangers. Religious associations are particularly useful in this regard. They are uniquely good at promoting social engagement–secular as well as religious. According to sociologist Robert Putnam, for example, regular churchgoers are more likely to vote, serve on juries, participate in community activities, talk to neighbors, and give to charities, including non-religious charities. And when it comes to defying state oppression, no groups are more effective than religious associations, which can inspire members to truly heroic acts of resistance, as dictators down the centuries have learned.

To be sure, religions don’t always encourage civic fellowship; to the extent a religion promotes sedition or violence against other citizens, society does not benefit. And perhaps, as Gerald Russello suggests, the non-religious have come so to distrust religion that they will view its contributions as tainted and objectionable from the start. But in encouraging greater social involvement, religion offers benefits to everyone, believers and non-believers, too. It’s worth reminding skeptics of this when they argue that religion, as such, doesn’t merit legal protection.

Center Sponsors Successful Joint Colloquium with Villanova Law School

Here’s an article, from the St. John’s Law School website, on the inaugural session of the Joint Colloquium in Law and Religion, which the Center hosted with Villanova Law School this semester. The Joint Colloquium, which featured leading law and religion scholars, used innovative “virtual classroom” technology to allow students and faculty at both schools to participate simultaneously through a synchronous video link.

2014_joint_colloquium

Joint Colloquium with Michael Walzer

From the article:

Michael Walzer (Institute for Advanced Studies) discussed the ethics of war in classical and contemporary Jewish law. Legal historian Sarah Barringer Gordon (University of Pennsylvania) explained how the availability of the corporate form empowered African-American congregations in the early national period. Kristine Kalanges (Notre Dame University School of Law) explored the relationship between Islamic law and contemporary ideas about constitutionalism and human rights. Kent Greenawalt (Columbia Law School) and Donald L. Drakeman (Cambridge University) both presented papers on Originalism. Greenawalt argued that factors other than the original understanding inevitably will and should play an important role in constitutional interpretation. Drakeman offered a methodological middle ground, one that takes account of both original intent and original meaning. Steven D. Smith (University of San Diego School of Law) critiqued the standard account of American religious freedom, and asked whether religious freedom in America today is suffering a decline.

The virtual classroom enriched the discussions by allowing for a fruitful exchange between participants at the two host schools. After the speakers presented their papers, students had the opportunity to ask questions and present their own insights and opinions on the issues.

This was our first experience with virtual classroom technology, and it was highly successful. You can read more about the joint colloquium, and view a photo gallery, here. Thanks to everyone who made it possible, and see you next time!

 

David Cameron on the Persecution of Christians

The persecution of Christians, slowly, is making its way onto the world’s agenda. In his annual Easter message, British Prime Minister David Cameron (above) urged churches in Britain to do more to draw attention to the suffering of Christians across the globe. Cameron also spoke, unusually, about his own Christian faith and the benefits Christianity “brings to Britain.” Skeptics might perceive an attempt to smooth relations with rank-and-file Conservatives, many of whom Cameron antagonized by supporting same-sex marriage. But politicians always have a variety of motives. Cameron deserves credit for raising the issue of persecution at a time when many in the West ignore it.

And why do so many in the West ignore the persecution of Christians? The always valuable John Allen explains:

Why isn’t this global war on Christians more of a cause célèbre?Fundamentally, the silence is the result of a bogus narrative about religion in the West. Most Americans and Europeans are in the habit of thinking about Christianity as a rich, powerful, socially dominant institution, which makes it hard to grasp that Christians can actually be victims of persecution.

I’ve made a similar point myself, here.

Quote for the Day

On the spread of American pop culture across the globe:

[S]ince the Internet ensures that barriers are transgressed with impunity, the lowest forms of human life will in due course dominate the screen in every living room, and the blame for this will fall squarely on America. Of course, that will be unjust. The blame for watching destructive images falls on the person watching them. The problem is that people are sorely tempted beings, unable to protect themselves from their own worst desires without the help of a culture that backs up their efforts.

Roger Scruton, Pop Imperialism.

The Weekly Five

This week’s collection of five new articles from SSRN includes Corinna Lain’s history of Engel v. Vitale, the school prayer case; Anna Su’s review of Steve Smith’s new book on the decline of religious freedom; and pieces on corporate social responsibility in Asia; Christianity and other foundations of international law; and the will to live.

1. John D. Haskell (Mississippi College-School of Law), The Traditions of Modernity within International Law and Governance: Christianity, Liberalism and Marxism. According to Haskell, three traditions constitute “modernity” in international legal scholarship—Christianity, Liberalism, and Marxism. These three traditions differ from one another but also have some similarities. He writes, “my hope is that in studying each tradition, we can find a new synthesis that allows fresh analytical tools to conceive the dynamics of global governance today and how they might be addressed.”

2. Corinna Lain (University of Richmond), God, Civic Virtue, and the American Way: Reconstructing Engel. In this history of Engel v. Vitale, the 1962 Supreme Court decision that struck down school prayer, the author argues that the conventional wisdom has the case wrong. Engel was not an example of the Court’s standing bravely against a popular majority. If the Justices had understood how controversial their decision would be, she maintains, they would not have taken the case to begin with. Instead, Engel demonstrates the power of judicial review in stimulating democratic deliberation on the Constitution—what some scholars call “popular constitutionalism.” She argues that popular antipathy to the decision resulted from misunderstandings provoked by the media.

3. Marvin Lim (Independent), A New Approach to the Ethics of Life: The “Will to Live” in Lieu of Traditionalists’ Notion of Natural/Rational and Progressives’ Autonomy/Consciousness. The author maintains that both traditionalist and progressive justifications for protecting human life are inconsistent and unconvincing. In their place, he argues for an ethic of the “will to live.” What ultimately matters is whether actions respect or violate this ethic. This approach would allow abortion and assisted suicide in at least some circumstances, he says.

4. Arjya B. Majumdar (Jindal Global Law School), Zakat, Dana and Corporate Social Responsibility. In this essay, the author traces the tradition of charity in Islam, Hinduism, and Buddhism and explores the relevance of that tradition in corporate law. Especially in Asia, the author says, where corporations have relatively few shareholders and tend to be family or individual operations, religious traditions of charity can play an important role in boosting corporate social responsibility.

5. Anna Su (SUNY Buffalo), Separation Anxiety: The End of American Religious Freedom? This is a review of Steven D. Smith’s new book, The Rise and Decline of American Religious Freedom. Su disagrees with Smith that the Supreme Court’s twentieth-century Religion Clause cases threaten the existence of religious freedom. “These decisions,” she writes, though frustrating and incoherent as they might seem, in fact, are as responsible for the remarkable religious pluralism that exists in American society today as much as for the contemporary secular extremism that Smith deplores.”

How Do You Say “Nones” in French?

From a French post describing my work on the Nones:

Est-il important de donner une définition au mot “religion”? Mark Movsesian, professeur de Droit à l’Université St. John a récemment publié un article sur la montée de la population des “Sans”, ces Américains qui se déclarent sans appartenance religieuse. Selon certaines évaluations, ils seraient 20% des adultes et, parmi les “millénaristes”, atteindraient 30%.

So it’s “les Sans.” I’d have thought it was “les Riens,” or maybe “les Aucuns.” Que sais-je? You can read the whole post in French here.

Corey on DeGirolami on Religious Freedom

In the University Bookman, Baylor’s Elizabeth Corey has a nice review of Marc’s book, The Tragedy of Religious Freedom:

DeGirolami suggests an alternative way of thinking about the conflicts inherent in religious liberty jurisprudence. He calls this the “tragic” approach. It shares with the extreme skeptics a doubt about the efficacy of theory as a magic bullet for solving real-world disputes. But it also agrees with the comic monist assumption that abstractions—equality, neutrality, noncoercion—are not empty of meaning but rather can be emblems of important values that law aims to protect….

The book merits a much more in-depth treatment than I can give it here. But perhaps what is most striking about it is its appreciation for theory—indeed, the whole work is an assessment of the value of theorizing—that is simultaneously grounded in the concrete and particular: case law. At once philosophical and practical, this book is a must-read for anyone who cares about religious freedom.

Read the whole review here.